Uttarakhand High Court
Manish Thapliyal vs Amit Kumar on 7 November, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 448 of 2022
Manish Thapliyal ...Revisionist
Versus
Amit Kumar ...Respondent
Present:-
Mr. Rahul Consul, Advocate for the revisionist.
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the
followings:-
(i) The judgment and order dated.
15.01.2020, passed in Criminal
Case No. 181 of 2019, Amit Kumar
Vs. Manish Thapliyal, by the court
of Judicial Magistrate (I class),
Srinagar, Pauri Garhwal ("the
case"). By it, the revisionist has
been convicted under Section 138 of
the Negotiable Instruments Act,
1881 ("the Act") and sentenced to
one year simple imprisonment with
a fine of Rs. 3,20,000/- out of
which, Rs. 3,10,000/- has been
directed to be paid to the
complainant under Section 357(3)
of the Code of Criminal Procedure,
1973 and the rest has been directed
to be deposited in the account of
the State Government. In default of
payment of fine, the revisionist shall
undergo for a further period of 6
months simple imprisonment: and
(ii) The judgment and order dated
10.05.2022, passed in Criminal
Appeal No. 20 of 2020, Manish
Thapliyal vs. State and Another, by
the court of District and Sessions
Judge, Pauri Garhwal, Camp
Kotdwar. By it, judgment and order
passed in the case has been
confirmed.
2. Heard learned counsel for the parties and perused
the record.
3. The case is based on a complaint filed by Amit
Kumar under Section 138 of the Act. According to it, the
revisionist had taken Rs. 3 Lakhs as loan from the respondent
and in demand thereof, he had given two cheques of Rs.
1,50,000/- each to the respondent. The cheques in question
were presented on 10.01.2019 for payment, but they were
dishonoured and information to this effect was given to the
respondent on 11.01.2019. The revisionist was given a notice,
but he did not reply to it. Thereafter, a complaint was filed,
which is the basis of the case.
4. In the trial of the case, the respondent was
examined as a witness. In defence, the revisionist got examined
as DW1 Sumit Kumar and DW2 Rani Devi. They are brother
and mother, respectively, of the respondent. After hearing the
parties, by the impugned judgment and order passed in the
case, the revisionist has been convicted and sentenced as
stated hereinabove. It has been unsuccessfully challenged in
the appeal
5. Learned counsel appearing for the revisionist would
submit that the cheques, in question, were not given to the
respondent; the revisionist had taken money from the father of
the respondent and he had given the cheques to him only. It
was done in the year 2017. Therefore, it is argued that the
alleged cheques would not raise any presumption under
Section 139 of the Act and the conviction is bad in the eyes of
law. Reference has been made to the statement of DW1 Sumit
Kumar. In cross-examination last paragraph, this witness has
stated that the revisionist had cordial relations with the father
of this witness and he had taken money. In lieu, thereof, he
had given cheques.
6. The revisionist has been convicted under Section
138 of the Act. Admittedly, the cheques were in the name of the
respondent. It is he, who presented the cheques in the bank,
but they were dishonoured as the account was closed. The
court below, while passing the judgment in the case, in Para
11, has discussed this argument of the revisionist. The
Statement of DW1, Sumit Kumar, which is referred to, in fact,
does not help the revisionist. DW1, Sumit Kumar, has not
stated that the cheques were given by the revisionist to his
father. What he has said was that the relationship between the
revisionist and his father was cordial. He says that the
revisionist had taken loan and in lieu, thereof, he had given
cheques. That is the case of the respondent that the loan was
taken from him. DW1 Sumit Kumar, in his examination-in-
chief has, in fact, supported the case of the respondent. DW2,
Smt. Rani Devi, has also supported the case of the respondent.
The cheques have been proved. The Bank dishonoured slip has
been proved. The witnesses have stated that the amount was
given in the year 2018. It has a date of 01.01.2019.
7. There is a presumption with regard to the cheque
under Section 139 of the Act. It reads as hereunder:-
"139. Presumption in favour of holder.--It shall be
presumed, unless the contrary is proved, that the holder of
a cheque received the cheque of the nature referred to in
section 138 for the discharge, in whole or in part, of any
debt or other liability."
8. The respondent had filed an affidavit in his
examination-in-chief corroborating his case. He has been
cross examined but nothing has been elicited, which may, in
any manner, doubt his credibility. He has categorically stated
that the revisionist handed him over cheques in the presence
of his mother and brother. He categorically states that the
cheques were given on 22.10.2018, but it had a date of 2019.
9. The respondent has proved his case beyond
reasonable doubt. It has been proved that, in fact, the
revisionist had taken loan and in order to repay it, he gave
cheques, which when presented were dishonoured. The court
below has discussed the law and facts quite in detail.
Nothing has been shown, which, in any manner, may term
the impugned judgments and orders as wrong, illegal or
improper.
10. Having considered, this Court is of the view that the
impugned judgments and orders do not warrant any
interference. They are in accordance with law. Accordingly, the
revision deserves to be dismissed at the stage of admission
itself.
11. The revision is dismissed in liminie.
(Ravindra Maithani, J.)
07.11.2022
Ravi Bisht
